Excerpts of Remarks by Commissioner Brian Fischer
Fordham University Law School “Conditions of Confinement” Colloquium
Fordham University Law School, New York
Oct. 24, 2008

First and foremost, confinement, by definition, means the loss of freedom
and privacy. Many people may think they can relate to that idea, but few get
to fully understand it on an emotional level. The loss of freedom and privacy
in prison is not like it is in the military, where everyone is more or less
equal and there’s a common goal shared by all. While some give the orders
and there are consequences for failing to follow them, there’s no pervasive
“us vs. them” atmosphere.

No one is in prison voluntarily. For the inmates, the only real common goal
is to do your time and stay out of trouble. More than one in seven inmates
has mental health issues, and many more have histories of drug abuse and gang
affiliation, learning disabilities and few job skills. While offenders try
to adjust to being in prison, correction officers are watching everyone 24
hours a day, seven days a week, in a unique setting.

Prisons exist in an A-normal environment. Notice, I did not say AB-normal.
There is a difference. By their very nature, prisons are oppressive and, more
often than not, unfeeling. They are also often lonely places because of a
disconnect between the offenders and their families and friends that lead
to feelings of isolation. For others, being sent to prison carries a degree
of shame, especially if they leave a loved one who must now carry on alone.

Some will argue that the manner in which prisons are run makes it difficult
for prisoners to be rehabilitated and for outsiders to assist them in dealing
with their rights, their needs, and their family and community relationships.
That’s only partially true. All the stakeholders - the prisoners, the
staff and outsiders - help and hinder the process at times because each brings
competing belief systems, goals and perceptions. Add to that attitudes of
mistrust among the groups and conflict is inevitable.

Take the undisputed issue of prisoners’ constitutional rights. While
inmates lose the right to vote, they don’t lose the right to seek redress
of real or perceived grievances, the right to file lawsuits, or access to
the courts. But how an offender goes about exercising those rights can create
problems. Staff often resent a prisoner’s right to file a grievance
against them. Prison administrations resent having to defend their policies
in a court of law. Lawyers expect access to their clients or quick resolution
to issues brought to the attention of the prison administration either directly
or through the courts.

Prisons must always try to find a good balance between the need to keep order,
safety and security in correctional facilities, through many rules and constant
supervision, and the desire and obligation to treat offenders with the dignity
and respect all human beings deserve. Conflict occurs when there is no balance
or by the perception by some offenders that they have been treated unfairly.

We in New York train staff not only to ensure they are prepared and equipped
to do their job from a physical and technical standpoint, but we also educate
all our employees about the rights of inmates, teach staff to employ fairness
with firmness in their dealings with those under their charge, and remind
everyone repeatedly, from their first day at the academy, about their obligation
to treat inmates with the same dignity and respect with which they would treat
any other person.

But no matter how clear the rules or how clear our direction, misunderstanding
and miscommunication are all too common.

Consider what happens when a visitor who doesn’t know the visiting
rules shows up for the first time and asks many questions of a correction
officer who is trying to process in dozens of other visitors. Or an outside
attorney calling into a prison and asking to speak to his client, thinking
the prisoner will be promptly located and escorted to an outside telephone
line, only to be told, in so many words, “Are you nuts?”

On the positive side, here in New York, we offer inmates dozens of vocational
courses that teach them real, usable job skills. We offer inmates quality
education, and the proof is in our GED achievement rate, which is 20 points
higher than the general public’s. We offer college courses through public-private
partnerships and extensive drug and alcohol treatment, and in the last few
years, we have expanded the programs and treatment services we deliver to
sex offenders and to inmates with mental illness. We offer parenting programs
and nurseries, and in the last 14 months, we’ve opened two specialized
reentry units to provide offenders personal contact with those who will form
their support system after release. We run more than 100 programs. All of
these initiatives represent efforts not only to prepare inmates to become
responsible, productive, tax-paying citizens after their release, but to maintain
positive and productive conditions of confinement during incarceration.

I take our responsibility to fairness seriously, so when I became Commissioner,
I added the Director of Inmate Grievance to the handful of staff who report
directly to me. I have started open discussions with a frequent critic of
the Department, the Correctional Association. We have an Inspector General’s
office to root out staff corruption, and we prosecute employee misconduct
vigorously.

But fairness also means sanctioning inmates who violate the rules. Our Special
Housing Units, where misbehaving inmates are sent, have worked well to keep
our facilities safe and orderly, as has our practice of denying privileges
to inmates found to violate prison rules. I believe our practices have paid
off for everyone, because the rates of violence within New York’s prisons
have dropped dramatically over the last quarter century and we haven’t
had a major incident in any of our prisons in more than a decade. Every facility
has been accredited by a national professional organization, the American
Correctional Association.

But no matter how well we all understand one another, there will always be
difficult and divisive situations. For instance, when a mentally ill inmate
assaults another inmate, prison staff move to discipline the offender. But
clinical staff of the Office of Mental Health often testify at the disciplinary
hearing that while the offender knew what he was doing was wrong and was not
acting on any delusional or paranoid feelings, his mental health problems
nonetheless could have been a contributing factor. How then is the disciplinary
hearing officer to respond? It’s like a court dealing with a defendant
who is convicted of committing a crime while also suffering from mental illness.

Conditions of confinement are always evolving, in part because of how interconnected
the courts, the legislature, the correctional administration and the inmates
are. Two recent court rulings illustrate that.

Jenna’s Law, adopted in 1998, called for determinate sentences for
all violent offenders and required that every such sentence also include a
period of post-release supervision. But the law did not specifically require
the judge to cite that requirement when pronouncing sentence. Most judges
did not, and as it turned out, most prosecutors and defense attorneys didn’t
discuss post-release supervision when working out a plea agreement with the
offender.

But because the law requires post-release supervision in those cases, the
Department of Correctional Services added it when the offender entered the
system and a time computation was completed. For over seven years, this practice
continued with the support of numerous court decisions. Then an Appellate
court reversed those rulings, saying only the judge can impose post-release
supervision and nullifying the Department’s practice. To complicate
matters, this particular decision was not binding on the State’s courts,
and many lower courts continued to support the Department’s practice.
That went on until this year, when the Court of Appeals ruled against the
Department, but allowed the State to seek to re-sentence each offender.

I raise this matter since it goes directly to the issue of confinement. Many
offenders took a plea thinking they would do whatever time was required and
then go free, only to be told about three months before their release that
they would have to be supervised by the Division of Parole once out. Many
offenders now claim that had they known about the post-release supervision
requirement, they might not have agreed to the plea.

What’s more, some offenders accepted the Department-imposed post-release
supervision, left prison, but then returned on a technical parole violation.
Now the courts say those offenders were illegally placed on post-release supervision
to begin with and therefore, in some cases, should be immediately released.

Another example is how a person’s freedom of religion can seem quite
straightforward, until the issue gets involved in everyday life inside a prison.

The courts have ruled that a person should have the right to choose his or
her religion and be allowed to practice it in prison as they would in the
community. The courts also said that a person’s religious belief is
that which he or she feels in their heart. In response, the Department allowed
offenders to switch their religion easily and fairly regularly. It didn’t
take long, however, for offenders placed in disciplinary segregation to claim
to be Jewish in order to receive sealed, pre-packaged Kosher food because
they did not want to be given food delivered by other offenders who might
put something in their food, even though correction officers were watching.
Before we knew it, the number of Kosher meals being served went from very
few to many, at an unacceptable and unnecessary cost. In the end, we had to
revise the policy regarding how often one could change his or her religion.
The need to balance the rights of offenders with the ability to manage a prison
was the real issue here.

For many offenders, their achievements in rehabilitative programs in prison
do not override their past criminal history, and the Parole Board denies them
release. For such offenders who, as they say, “Did what was asked of
them” but are not released, the emotional letdown cannot be ignored.
Neither can the emotional rollercoaster many inmates exhibit prior to their
scheduled release date. Often informally called “gate fever,”
it’s the reaction many offenders have when they realize they are really
going home and will be confronting the problems of reestablishing family ties,
getting a job and dealing with all the changes that have taken place in society
while they were in prison.

In summary, we can’t view the conditions of confinement narrowly. There
are many complicating factors. Medical care, treatment for the mentally ill,
and rehabilitation programs are important matters that deserve close scrutiny
by advocates and the courts, but we should not overlook the impact on the
individual offender as we move toward finding common ground to improve the
lives of everyone impacted by prison confinement. We need to put aside our
personal agendas and beliefs and consider what is best for the inmate and
ultimately, society. We need to understand the dynamics of prisons, and their
relationship with the courts and with society in general.

More importantly, do not assume that correctional systems do not want to
change and improve. Restrictions come in all forms, not the least of which
is funding. Do not assume correctional systems cannot change. The New York
State system does not look like it did 20 years, 10 years or even five years
ago.

To quote Charles F. Kettering, an American engineer and inventor: “There
is a great difference between knowing and understanding: you can know a lot
about something and not really understand it.”